You and Your Rights

Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.

Assault

Using force against another

Assault, which most often takes the form of 'common assault',
consists of intentionally and unlawfully applying force to the
person of another, either directly or indirectly, or in inspiring
a belief in the victim that force is immediately and inevitably
about to be applied to him or her. When the assault is physically
indecent, the aggressor commits the crime of indecent assault,
and when assault is committed with the intention of perpetrating
a crime such as murder, rape, robbery or the rendering of
grievous bodily harm, it is the more serious offence of assault
with intent.

In certain circumstances the application of force is not an
unlawful assault. In common law and subject to certain
limitations, parents have the right to chastise children by
administering moderate corporal punishment. The administration of
corporal punishment in schools throughout the country is
widespread although it is only supposed to take place under
strictly controlled conditions. Legislation before parliament in
1996 proposed outlawing this practice entirely.

Members of the police may use reasonable force to overcome
resistance to lawful arrest.
Participants in lawful sporting contests (such as boxing or
wrestling) may use force against an opponent within the rules of
the sport. A person may also use force to ward off an attacker.

Intention is an essential element of the crime of assault.
Aggressors must actually desire to use force or foresee the
possibility that their conduct might result in the application of
force.

If a man swings a golf club negligently and hits his friend,
the crime of assault is not committed, although the friend may
still claim monetary compensation for the pain he experiences,
any disability he suffers as a result and medical expenses he may
have to incur in order to obtain treatment for his injury.

When, on the other hand, a man shoots at his victim in a
crowded street and the bullet ricochets and wounds a passing
pedestrian, the gunman will be guilty of assault even though he
did not aim to hit the injured person; it is assumed that he must
subjectively have foreseen the possibility of killing or injuring
someone other than his intended victim.

Physical assault requires the application of a measure of
force, but it does not have to be direct.

The following examples of indirect force have been held to
constitute assault:

Derailing a train and causing injury to passengers
travelling in it;

Frightening a horse so that it runs away with its rider;

Cutting a hole in ice in front of a skater, causing him
or her to fall in;

Deliberately administering alcohol to a child until he or
she is semiconscious;

Creating a 'booby trap';

The administration of poison.

Assault does not have to be physical at all - it can occur
through the causing of fear, if there is a threat of immediate
personal harm and the threatened person believes that the
aggressor is in a position to carry out this threat. 'Psychic'
assault is threatened physical assault. The threat must be of
immediate harm. However, a conditional threat can also be an
assault. A man who stood at the door of another's hut and
threatened to kill him if he came out committed assault (R v
Dhlamini, 1931).

The fear must be induced by the words or gestures of the accused. If the victim is
not aware of the aggressor's conduct, there can be no 'psychic'
assault.

Case History - The vengeful husband

A young man returned home from duty with the Defence Force to
find that his wife had been unfaithful. After drinking at a
hotel, he became involved in a brawl with his wife's lover and
fired at him. The first shot missed but a second ricocheted and
wounded an innocent woman. The accused was charged with assault
with intent to murder in respect of the man and common assault in
respect of the woman.

His conviction on both charges by a regional court was
upheld by the Transvaal Provincial Division of the
Supreme Court. Regarding the assault, Mr Justice Margo
said: 'This is not merely a case of the negligent
injuring of a person, which is not a crime in our law.
Here the appellant, in shooting at his intended victim in
a crowded street ... must have foreseen subjectively the
possibility of killing or injuring some person other than
the intended victim and he was reckless as to whether
death or injury resulted or not.'

(State v Tissen, 1979)

Case History - A vicious vendetta

In 1983 Ramakulukusha, a well-known businessman, was arrested
by members of the police on a trumped-up charge of murdering a
young girl. He was detained for eight days, during which time he
was assaulted by being struck with clenched fists, flung against
a wall, submerged in a bath of water with a soapy bag pulled over
his head, forced to confess falsely to the murder and compelled
to travel around the former homeland of Venda while under arrest,
closing several of his businesses. He was later tried on a charge
of murder but acquitted. It turned out that the arrest, assault,
closure of businesses and trial on a false charge had all taken
place at the instigation of a police captain in the course of a
personal vendetta.

The Venda Supreme Court ordered that Ramakulukusha be
paid compensation of R84000. In delivering his verdict,
Mr Acting Justice Van der Spuy said: 'I am of the opinion
that, when the police are holding prisoners in detention
and then resort to the kind of treatment which was meted
out to the plaintiff, causing considerable injury,
indignity, discomfort, fear and anxiety, the court must
make an award which in money terms expresses its
disapproval of the seriousness, brutality and the
humiliating effect of such treatment.'

(Ramakulukusha v Commander, Venda National Force, 1989)

Warning - Attempting the impossible

Even an attempt to commit the impossible may be punishable. For example, a man who, intending to steal someone else's umbrella from a cloakroom, by mistake takes his own umbrella, may be guilty of attempted theft even though it is impossible to steal one's own property. And a person who stabs a corpse in the heart, thinking that it is a living human being and intending to kill it, commits the crime of attempted murder.
In another case, a doctor was found guilty of attempting to carry out an abortion even though the foetus in question was already dead before the doctor had begun the procedure.

Assault with intent

If the assault is accompanied by the intention to commit a
crime more serious than common assault, the charge will be
formulated as such. In practice the most common crimes intended
are murder, rape, robbery and the causing of grievous bodily
harm. To establish the intention of grievous bodily harm it must
be shown that the intention was to inflict serious injury (which
may be judged by the weapon used, the degree of force employed in
wielding it, the place on the body where injuries were inflicted
and the nature of the injuries sustained). When a firearm or
dangerous weapon has been used by a person over the age of 18 to
injure another, a court may be obliged to impose a sentence of at
least two years' imprisonment.

Indecent assault

When the act of violence or the force used in making the
assault is indecent, the crime is indecent assault. Examples are:

Lifting up a woman's dress;

Putting a hand up a woman's dress;

Caressing a woman's breasts;

Touching a person's private parts.

The following, however, have been held by our courts not to be
indecent assault:

Making improper suggestions to a woman and then grabbing
her arm;

A man grabbing a woman by the arm and stating that he
wants to have sexual intercourse with her;

Kissing a woman against her will.

Assault by the police

It is illegal for the police to use violence, or threaten to
use violence, to obtain answers to questions. Again, both actual
force and any unlawful threat of force or maltreatment constitute
assault.

If suspects, witnesses or detainees are assaulted, criminal
charges can be brought against the police and an action for damages can be instituted
both against the police officers who perpetrated the assault and
the Minister of Safety and Security.

Anyone assaulted by the police should see a doctor as soon as
possible. A person who is being held in custody should ask to be
examined by a district
surgeon. It is normal in these circumstances for the doctor
to make a record of any injuries and other aspects of the
person's condition.

The difficulty in bringing a charge of assault against the
police lies in providing proof. The prosecutor would have to show
beyond reasonable doubt that an assault took place, but in the
absence of witnesses other than the police, physical injury and
the complainant's word are often the only evidence available.
(See police,
complaints against the.)

Provoked assault

If someone has caused bodily harm to another under severe
provocation, the defence could be that there was no intention to
cause the harm upon which the charge is based. The accused would
thus plead not guilty of assault with the intention of inflicting
bodily harm.

Assault by a parent

Punishment that inflicts serious injury upon a child is
illegal because the parent is subject to the law relating to
assault and can be fined or jailed for causing a child grievous
bodily harm.

Unnatural punishment, such as locking a child up for hours
without food, is also an offence.

Cases such as these are usually discovered by a neighbour, who
may reasonably suspect assault or cruelty. In such instances, any
suspicions should be reported to the nearest police station.

This confidential approach avoids embarrassment. The Child
Care Act, 1983, imposes a duty on dentists, medical practitioners
and nurses who examine or attend to any child in circumstances
giving rise to the suspicion that the child has been ill-treated
to report the matter immediately to the regional director of the
relevant health authority of the district in which the child
happens to be. (See child
abuse.)

DEFENDING A CHILD Parents have the same
rights to defend their children as they have to defend
themselves.

If they believe that their child is in danger of attack, they
may use reasonable force against the aggressor. In extreme cases,
parents may even be within the law if they seriously injure or
kill an attacker. But they must be able to show that they really
believed that the child was in danger of being killed or
seriously injured.

Any force or violence used against an aggressor must be
proportionate to the danger. It would obviously not be reasonable
to wound a neighbour seriously in order to restrain him or her
from smacking a child. Nor would a court consider it lawful to
assault a neighbour in revenge for having admonished or smacked a
child.

Penalties

The courts have a wide discretion in cases of assault, as they
do in most common-law crimes, and punishment will depend on the
circumstances and the nature and severity of the assault.

Although we have gone to great lengths to ensure the accuracy of the information contained in this database, it is important to remember that laws, government departments, interest and taxation rates are constantly changing. If you have a particularly difficult problem you are advised to consult a qualified legal authority. The publishers, editors and their representatives cannot accept responsibility for any act or omission arising from consulting the information contained herein.

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